MEDIEVAL PLURALISM VS ROMAN LAW

PART 6: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

This installment to the to the series will largely be repetitive for long time readers. Still, it’s of interest, I think, to have yet another scholar, from yet a different time, place, and context, reiterate what we’ve already learned about the constraint of kingly power, customary law, the medieval constitution, its differences with Roman Law, and how the latter eventually contributed to the overturning of the medieval constitution’s legal pluralist order. Earlier discussions of Nisbet and Kern particularly will be echoed here. Here, too, Grossi reiterates the importance of factuality, or reicentricism, in his discussion.

And for newer readers, this brief installment will provide valuable context for the discussion to come in this series. I’ll quickly go through a set of quotations from Grossi that make these points, with minimum interjection and framing.

…the princes, as we shall soon see, are required to respect and adhere attentively to custom as much as their subjects are. Princes are not the producers of law: they do not create legal structures, nor does the medieval collective mind identify the dominant trait of their power as being the creation of authoritative norms. The virtue that makes one a prince – that is to say the feature that defines a prince, the ideal to which he has both the power and the duty to adhere – is aequitas (‘justice’). A prince is a prince because of his ability to dispense justice, a quality which can be derived, in turn, from the lessons written in the tangible world of things and nature. The prince’s apparently extensive power thus reveals itself to be an onerous duty.

The new [post-Roman] legal order of the Middle Ages rides under the banner of particularism: that is to say it is an order which cannot and does not wish to smother the demands of the many minorities whom the incompleteness of medieval political power permits to survive and to thrive in all their vitality. Thanks to a fervidly reicentric attitude, the individual realms of the Middle Ages, each with its own legal style and vigour, foster and incorporate thousands of customary laws until these become as defining an attribute of each land as their differing flora.

The protagonist of the medieval experience of the law is therefore not the legislator nor the scholar but the notary: a practical man.

…it is mainly in the novel field of agricultural law (almost unknown to Roman jurisprudence) that the early medieval notary demonstrates his versatility and makes his positive contribution.

Grossi emphasizes the constraints upon kingly power resulting from customary law as the lifeblood of the medieval constitution.

The power of the prince is, and will be for all the duration of medieval jurisprudence, made up of a complex system of powers amongst which judicial authority is central. This system also includes, secondarily, the authority of ius dicere (‘declaring the law’) – the role of making the law manifest to the prince’s subjects. Yet, in reality, the prince must come to terms with a constitution fashioned from legal customs which he was not responsible for creating and which, moreover, includes the prince himself under its jurisdiction as much as it does the lowliest of his subjects.

…the Visigoth kings in Spain, the Lombards in Italy and the Frankish kings and emperors all produced an appreciable quantity of legislation. But when examined closely, these laws and edicts follow the shape of the wider universe of mores, of customs from time immemorial, which the kings did not dare contravene and to which they submitted.

The early medieval attitude towards the term lex (‘law’) is very particular: the conceptual gap that separates lex and consuetudo (‘custom’) in modern formalist legal thinking is entirely absent. A consuetudo is merely a law that has yet to be made, and a law is merely a custom that has been properly written down, certified and codified.

This medieval constitution of customary law Grossi contrasts, in a manner reminiscent of Nisbet, to the Roman Law which is emerging in prevalence in the later medieval period.

…the discontinuities we will find exist between the medieval context and the choices made by Roman lawyers, whose first aim is always to maintain control of the legal sphere, which Roman jurists saw as vital to the stability of the political order.

The Romans ensured their contractual agreements were governed by a rigorous principle of standardization: private citizens were allowed standard types of contracts, which followed pre-made models. These offered legal protection only to certain established types of transaction: sales, rentals, loans, etc.

The early medieval practice of contractual negotiation, on the other hand, is characterized by a total lack of standardization. Indeed things could hardly be otherwise in such a profoundly custom-governed legal environment.

The contractual models shaped by notarial practice functioned as very flexible formal receptacles; they differed dramatically from place to place, but all were able to accommodate a wide variety of customary content.

Roman civilization across all the centuries of its development was always a fiercely proprietary society: that is to say it was founded on the ideal of individual private property. The importance of private property exceeded the purely economic realm and became of political importance as well.

The agrarian nature of medieval life for Grossi is central in explaining its reicentricism, its reliance upon a hard consequentialist factuality. Or, as I’ve described it in my recent book: a conscientious integration with nature’s negative feedback loop, and the lessons it teaches about surviving under harsh Darwinian conditions. In Roman Law, he observes:

Economic facts such as use, enjoyment, trade, or even the simple material fact of physical familiarity with an object, leave the hinterland of legal irrelevance and take up their own place and significance in the eyes of the law. This occurs especially once the passage of time has rendered these situations of fact effective. As we have seen, the medieval constitution is not concerned with validity – that is the compliance with an authoritative general principle – so much as with effectiveness.

The medieval world is no longer seen from the point of view of the subject but rather from that of the object, with the result that the world is understood from the ground up.

Roman law is primarily a civil law, and is therefore predicated upon a legal party who is abstract and economically undefined: the civis (‘citizen’).

Early medieval law, meanwhile, is predominantly an agrarian law: it is predicated on the fundamental economic facts of cultivation and production and on legal parties who are assumed to be growers, breeders, woodsmen.

Many occupiers of land under licence – particularly those who seek to improve the land’s productivity in the long term – gain a status of para-ownership thanks to an unobtrusive but continuous erosion of formal property rights.

Medieval law is not governed by the cult of proprietary titles (although this certainly does survive), but seeks rather a more abundant and higher-quality agricultural harvest, in whose name all sorts of sacrifices may be demanded, even from registered titleholders of property.

So, for Grossi, the closeness to the margins of survival entailed in the agrarian society of medieval life dictated a law rooted in the factuality of nature’s demands for productive success. Slipping out of the nature’s negative feedback loop – into the kind of unconstrained vision of a positive feedback loop enabled by more prosperous societies – would be the death knell of temporalist society. It is for this reason Grossi argues that the medieval constitution required a form of law less concerned with formalities and appeals to abstract principles, but rather rooted in the facts of what did or didn’t work to improve the agricultural production essential to survival.

The case of property rights illustrates his point. Property rights could not be based upon highfalutin notions of the independent individual nor rationalistic conceptions of “the good (or fair) society.” Rather, property had to be legally conceived in terms of what actually worked most effectively to extract from nature the agricultural products essential to the survival of a society living near the margin of nutritional sustainability.

Grossi’s analysis then raises an interesting question from the perspective of the history of the Western world’s recent experience of the phenotype wars: i.e., was the re-emergence of Roman Law, as Nisbet seemed to suggest, a cause of the transition from time to space biased society, or in fact is its re-emergence a symptom of that transition, driven by other factors? Such as increased prosperity resulting from more successful agriculture methods, producing a greater surplus of goods, and thus supporting a more complex society and diverse range of economic and cultural goods?

A couple steps in the direction of answering that question are provided in the next installment of the series, as Grossi starts to address the consequences for European legal theory of the historical circumstances of the late medieval period. So, if you want to be promptly informed of when that post lands, but haven’t yet, please…

And, of course, if you know of anyone else who’d be interested in joining our examination of the lessons of legal pluralism for a renaissance in populism, please…

Meanwhile: Be seeing you!